It all starts with planning – Amending planning permissions
28 January 2025
News
Despite the Town and Country Planning Act 1990 having been around for some time, there has been a run of case law on the scope of Section 73 (S73) applications, dealing with amending planning permissions.
Section 73 permits an already consented development to come forward with variations to the conditions on the original planning permission (or the deletion of conditions). Government guidance published in 2014 referred to section 73 applications being for “minor material” amendments. However, recent case law confirmed that this materiality limitation has no statutory basis.
Another way to amend a planning permission is under Section 96A which permits “non-material” amendments to be made to any part of a planning permission.
With the recent case law in mind, we’ve summarised the various ways that you can amend planning permissions under these two sections:
S96A
An application to make non material amendments to any part of the planning permission (e.g. description of development, conditions, informatives);
When deciding whether the proposed changes are within the scope of S96A (i.e. if they are non-material) you need to look at the changes within the context of the whole development;
You also need to consider whether cumulatively, the proposed changes, together with any others approved under previous S96A applications, are non-material;
Cannot be used to extend the time period for implementing a planning permission;
The application must be made by someone with an interest in the application site;
28 day determination period;
No requirement on the Council to consult on the application;
No right of appeal if the application is refused;
Automatically amends the original planning permission if the approval is granted. If you change your mind and want to build out under the original unamended planning permission you will need to submit a further S96A application to remove the changes granted by the first S96A approval;
A Council’s decision to grant a S96A approval can be judicially reviewed.
S73
An application that grants a new planning permission with varied conditions;
Can be used to vary or delete conditions, but not to add conditions or to vary the description of development or any informatives;
Case law in 2024 confirmed that variations approved under S73 are not limited to “no- material” amendments. This reference was included by the Government in guidance they published on amending planning permissions, but there is no reference to the materiality of amendments in section 73 of the Town and Country Planning Act 1990. Further case law has confirmed that as long as the proposed changes to the conditions do not result in a conflict with the operative part of the planning permission (i.e. the description of development) then there is no limitation of the extent of the variation that can be permitted;
Cannot be used to extend the time period for implementing a planning permission;
The application can be made by anyone (notice requirements must be complied with if the applicant is not the sole owner of the application site);
The determination period is the same as for the original planning application;
The applicant can appeal the Council’s decision to refuse to grant the S73;
If granted, the application results in a new planning permission with the same conditions as the original planning permission but amended as per the S73 application. The developer can therefore either implement the original planning permission or the new amended planning permission. Care needs to be taken if there are multiple S73 and S96A applications to ensure one planning permission picks up all of the proposed changes;
A Council’s decision to grant the new amended planning permission can be judicially reviewed.
The Levelling Up and Regeneration Act provides for a new way to amend planning permissions which has yet to come into force. Under S73B amendments that are not substantially different from what was originally consented can be made to any part of a planning permission, but cannot be used to extend the time periods for implementation. Whilst this is welcomed given the constraint of S73 only enabling variations to conditions it is feared that there could be a lot of case law around what is meant by “substantial”. There is also uncertainty as to when the provision will take effect as it will require secondary legislation to be brought forward, and the Government’s “To Do” list is pretty lengthy at the moment!
For more information on Planning you can get in touch with our team here.
Sophie Smith speaks to Property Week on NPPF response and Nature Reservation Fund
10 January 2025
Views
In December, the Ministry of Housing, Communities and Local Government published their response to the National Planning Policy Framework, developing their green-belt policies and further defining grey belt land. Adding to the discussion, they also published plans for a new Nature Reservation Fund, designed to help developers with their environmental mitigation costs.
A key takeaway is that the government has changed plans for a flat 50% affordable housing requirement on green belt land, instead having a variable premium ranging from 15% to 50%, on top of the targets set by local plans.
Sophie Smith, Associate on our Planning team, spoke to Property Week on how open to interpretation these requirements are now, and how this will affect identifying grey belt land.
“[The number of appeals will depend on] how local authorities seek to interpret and apply the new policy on a local application specific level”.
On the new Nature Reservation Fund, this could “iron out the delays in the development process”. With scheme environmental aspects often the cause of additional work and delays, the fund could possibly give “greater certainty to developers as to how these issues can be addressed and mitigated much earlier in the development process”.
Matthew Evans writes for Property Week on the M&S verdict, planning, and carbon
13 December 2024
News
Two governments later, after rounds of decisions and appeals, detailed reports and public commentary, Marks & Spencer (M&S) have finally been granted planning permission by Angela Rayner to demolish its flagship Oxford Street store. Speaking to Property Week, I look at the main challenges that delayed this outcome, and how this affects planning as a whole.
Overturning Michael Gove’s previous decision, Rayner’s stance favouring redevelopment is cautiously welcomed by the planning industry. However, the debate around retrofitting or redevelopment is an example of how disrupted the UK’s planning system is, hindering rather than helping development.
A significant problem in the delayed decision making process were the broad range of environmental and planning experts involved, and their conflicting views on points that currently lack clarity or policy. The key issues being:
Whole-life carbon (WLC) assessments are a case of ambiguity, opinion versus opinion. As a developing tool, we need more certainty on the findings and the impacts, taking into account the lifetime of the build and not just embodied carbon.
We need to see much clearer policy on retrofitting, and how this is considered in the development process versus demolition, however this is already being addressed in government consultation.
If not demolition – what are the alternatives? Numerous options were put forward by M&S in their case for redevelopment, but these were not considered sufficient. We need more guidance on what is required for alternatives, to ease the process.
This decision goes beyond retail, with potentially hundreds of other similar situations to this across the UK across different sectors. Without better understanding on the issue of retrofit versus demolition, many buildings risk becoming obsolete given the work needed to improve their energy performance.
“The burning question that remains is whether the M&S case should ever have reached this stage. Does it say more about the previous political environment than the planning process, or was it the perfect storm of political incompetence and planning stagnation?”
Biodiversity net gain (“BNG”) is now an integral part of the planning system, mandatorily applying to all applicable developments and requiring at least a 10% uplift of the biodiversity value of the site post-development.
BNG is a point to be considered at site acquisition and appraisal stage, as well as being factored into the design and planning application. Here are five key points to know for those developing land which will be subject to the BNG requirements:
1. Planning permissions granted or applied for before the BNG regime took effect are not subject to the statutory requirements.
The BNG regime took effect on 12 February 2024 for the majority of sites, and 2 April 2024 for small sites.
A planning permission already granted before the obligations take effect will not be subject to the BNG requirements. Equally, a planning permission applied for before the above dates, but granted afterwards, will also not be caught. As a follow on consequence, if such a planning permission is later varied by section 73, that variation will likewise not be subject to the BNG obligations.
2. It is not necessarily easier to meet the BNG requirements on brownfield land.
The rules apply equally to brownfield and greenfield land and regardless of the level of the baseline. The assumption is that often, brownfield sites will have a lower baseline ecological value than their greenfield counterparts. Whilst in some cases this will be the position, it is not necessarily the case. As a particular example, open mosaic habitats are often found on brownfield land and are classified as a ‘high distinctiveness’ habitat in the statutory metric. It therefore remains important to do robust initial assessments of the onsite habitat as early as possible and not assume that a brownfield site will have a low ecological baseline value.
3. The BNG regime applies even where the relevant condition is not imposed on the face of the permission.
The pre-commencement condition requiring a biodiversity gain plan to be submitted is deemed to be imposed regardless as to whether it is included within the decision notice itself. The government guidance on BNG provides councils with a standard form of wording to include as an informative on the decision notice, with the aim of not introducing conditions conflicting with the statutory requirements.
It is important to bear this in mind when reviewing decision notices possibly with the intention of acquiring sites to develop or for investment purposes.
4. It is possible to phase a planning permission for BNG purposes.
Phased development for BNG purposes refers to either (i) outline permission where the reserved matters permit or require the development to come forward in phases; or (ii) any planning permission subject to conditions which permit or require the development to come forward in phases.
Permission for phased developments will be granted subject to the planning conditions requiring the following:
An overall biodiversity gain plan will need to be submitted to the local planning authority prior to commencement of the development as a whole.
No phase of the development can commence until a biodiversity gain plan for that phase has been submitted to and approved by the local planning authority.
If the preference is to phase the BNG delivery, this will need to made clear at application stage and it will be reflected on the decision notice.
5. Whilst the biodiversity gain plan will be secured by planning condition, details on the BNG strategy for the development and how the 10% gain will be secured must be submitted at application stage.
Applications for planning permission will need to include a statement as to whether the applicant believes that planning permission would be subject to the biodiversity gain condition and if not, why not.
Where it is considered that the BNG requirements are applicable, the following information will need to be submitted at application stage (non-exhaustive):
The completed biodiversity metric calculation tool, showing the calculation of the biodiversity value of the onsite habitat.
If any activities have been carried out on the site since 30 January 2020 which have lowered the biodiversity value of the site, a statement confirming those activities and the date when they were carried out.
A plan showing the location of the onsite habitat included in the calculations and any irreplaceable habitat.
Sophie Smith is an Associate in our Planning Team and has a particular interest in the Biodiversity Net Gain regime introduced by the Environment Act 2021.
Victoria Du Croz speaks to FT and others on Labour’s plans to develop “grey-belt” land
12 December 2024
News
The Labour government has introduced significant changes to England’s planning system, concerning the development of low-grade greenbelt land. As part of Labour’s plans, there was a commitment that 50% of homes built on this land would be affordable, however, this has been dropped due to concerns about financial viability. Instead, the plans pivot to alternative “grey belt” land being open for redevelopment, requiring that these projects include 15 percentage points more affordable housing than other local projects.
Housing Minister Matthew Pennycook explained that this adjustment aims to avoid an inundation of developers asking for exceptions to the 50% rule, whilst reducing the risk of unviability scuppering rural new build projects.
Speaking to numerous publications, Victoria Du Croz, Head of Planning, warns: “Without increased clarity the definition of grey belt will be played out at appeal and in the courts, delaying planning applications and fundamentally delaying the provision of new homes.”
Following the biodiversity net gain (“BNG”) requirements of the Environment Act 2021 coming into effect on 12 February 2024 and 2 April 2024 for major and small sites respectively, this note summarises some key points we have seen arise to date.
Please also refer to our previous notes of October 2023 and February 2024 for further detail on these obligations.
How are councils approaching BNG at application stage?
Broadly we have seen councils proactively engage with the BNG requirements but as expected, there are a number of issues arising due to local authority resourcing and the capacity to deal with the more onerous obligations associated with complying with the BNG requirements. Please refer to our note from February 2024 for details of what needs to be submitted at application stage.
We have seen some local authorities take an approach to the application requirements which does not accord with the legislative provisions. For example, we are aware of local authorities requiring the offsite gain units (where applicable) to have already been located and identified at application stage. There is no regulatory requirement for this and from a practical perspective, it is often unlikely that applicants and developers will be able to demonstrate this at application stage, particularly given the number of registered gain sites (see further comments below).
Does the bng regime apply where the council does not expressly impose the relevant condition on the face of the permission?
Yes, the pre-commencement condition requiring a biodiversity gain plan to be submitted is deemed to be imposed regardless as to whether it is included within the decision notice itself. It is important to bear this in mind when reviewing decision notices possibly with the intention of acquiring sites to develop or for investment purposes, as we are aware that some councils have not expressly included the condition even where the permission is subject to the BNG regime.
Are planning applications for alterations to building subject to the bng regime?
Alteration applications are not specifically excluded but some of the exemptions could apply. In particular, the BNG regime does not apply to the works carried out pursuant to a development right. Equally, the de minimis exemption is likely to apply in the context of alterations; in broad terms if the works will impact less than 25sqm of onsite habitat the statutory BNG regime will not apply.
It may therefore become important to consider the extent of the application boundary when applying for planning permission, to ensure this does not include any habitat at the property which is not in reality the subject of the application.
Is the biodiversity register working effectively?
The register itself is publicly available and (at the date of this note) shows 11 registered gain sites. The register of course only shows the sites once they have been registered and where applicable the allocation and as a result, it is not representative of the number of sites which are in the pipeline to come forward. We are aware there are various sites where preparation work is underway for the gain sites to be dedicated but where this has not yet completed. Commercially, this may be because landowners are reluctant to tie up their land for this purpose until buyers for the units have been found.
How is the market for offsite gain units emerging?
Given the number of developments which will not be able to deliver the entire required 10% gain on site, the market for offsite units will continue to grow in importance. The hierarchy of mitigation options means the BNG system is to an extent reliant on offsite units continuing to become available, otherwise the default position will be the purchase of the statutory credits which have been priced to disincentivise this option. This balance between the supply of the gain sites and the demand for the units is still emerging in these initial months since the regime became mandatory. As more applications which are submitted requiring offsite units it will become clear whether demand outgrows supply and at that point, whether the resort to the statutory credits becomes more prevalent than it has been to date.
Can applications to allocate units to a development be made at the same time as the registration of the gain site?
Yes, applications to register an offsite gain area and allocate the associated units can be submitted at the same time. This is achieved via the online registration platform. Operating via this approach would be taken where the dedication and allocation has effectively happened simultaneously, perhaps where a landowner has dedicated land specifically for the purposes of providing the relevant units to offset a particular development.
How long does it take to register a gain site and allocate units to a development?
The Government website currently indicates a 6 week period from receipt of the application to registration (provided the application is successful). The time period for this registration gap should be factored into transactional timetables which may be conditional on successful registration of the gain site.
Will it be less onerous to comply with the bng requirements when trying to develop brownfield land?
The level of difficulty in complying with the BNG obligations will often be dependent on the baseline number of units on the site, as this dictates the target level of the 10% uplift. The rules apply equally to brownfield and greenfield land and regardless of the level of the baseline.
The assumption is that often, brownfield sites will have a lower baseline ecological value than their greenfield counterparts. Whilst in some cases this will be the position, it is not necessarily the case. As a particular example, open mosaic habitats are often found on brownfield land and are classified as a ‘high distinctiveness’ habitat in the statutory metric. An open mosaic habitat is identified by hard surfaces interspersed with vegetated areas; an example would be broken or fragmented paving in which habitats have naturally grown and often developing over a long period of time.
It therefore remains important to do robust initial assessments of the onsite habitat as early as possible and not assume that a brownfield site will have a low ecological baseline value.
Is there an industry standard s106 agreement for the purposes of securing bng?
Each local authority will have its own preferred form of s106 agreement for addressing BNG, similar to any other type of planning obligation. In terms of dedicating land as an offsite BNG area, again this will often depend on the dedicating party and whether a local authority or habitat provider are party to the agreement who may have preferred form documents in place.
In terms of the BNG plan to be submitted to discharge the planning conditions, the government has prepared an example plan which can be used to apply to discharge the pre-commencement condition. It is expected that most local authorities’ preference will be that the BNG plans follow this template.
Please get in touch with our Planning Team for any specific advice or guidance on any individual sites.
Information correct as at September 2024. This note is a summary, please refer to the legislation and guidance for full details.
Administration is a “rescue” procedure, where the primary statutory objective is to allow a company to carry on trading as a going concern. In practice, most administrations do not achieve this objective and result in a sale of certain assets and the liquidation of the remainder – the original company rarely survives.
Administration works by imposing a moratorium on legal action against the company by creditors: thus allowing the company breathing space to reorganise its affairs. Once appointed, administrators will have the power to deal with the company’s property and assets. They will often sell off parts of the business to third parties, and may grant third parties the right to occupy the premises.
Will Rent Be Paid?
If the administrators continue to use the premises for the purposes of the administration – for example, by trading from it or allowing others to trade from it – then they will be liable to pay the rent and other sums due under the lease in respect of that period as an expense of the administration. This means the sums are payable as a priority, before sums owing to the majority of creditors. They will be payable at a daily rate, for the period that the administrators use the property. Rent paid as an expense is typically paid monthly in arrears, even though the lease might state otherwise (e.g. quarterly in advance).
Rent and other sums which have fallen due for payment in respect of a period either before the administrators are appointed, or once they have stopped using the premises, are unlikely to be paid immediately or in full.
What is the Effect on any Guarantee or Other Security?
The administration of a tenant will not have any impact on a guarantee given by a third party company or individual, unless there are specific provisions governing this in the guarantee agreement. We recommend that you check the terms of any guarantee as soon as you can, and ensure that you understand what steps need to be taken in order to make a claim from the guarantor. If the guarantee is in the form of an authorised guarantee agreement (“AGA”) given by a former tenant, or the guarantor of a former tenant, you will need to serve notice (under s17 of the Landlord and Tenant (Covenants) Act 1995) on the guarantor within 6 months of the sums falling due. This time limit is strict, and the right to recovery will be lost if it is not met.
The impact of the administration on any rent deposit will depend on how the rent deposit deed has been drafted, and how the deposit is held. Again, we recommend that you check the terms of the rent deposit deed as soon as possible, and ensure you understand what needs to be done in order to withdraw sums. It is usually possible to withdraw sums to settle any outstanding liabilities of the tenant under the lease. The administrators’ prior consent for this is often required, and is usually given.
Can the Administrators Bring the Lease to an End Without My Consent?
No. Unlike some other insolvency procedures such as liquidation, administrators do not have the power to disclaim leases.
If the administrators do not want to use the premises you may find you are offered a surrender early on. Administrators will often ask for a complete release of liability under the lease upon surrender. You should consider any such offer very carefully, since accepting it may bring forward your liability for business rates or limit your ability to recover unpaid arrears or claim for dilapidations.
You should also be careful of any attempts by the administrators to return keys to the property, as this may give effect to a surrender by operation of law if accepted by the landlord (or its agents). If keys are returned, then it should be made clear that they are being held on the tenant’s behalf for collection.
Can I Terminate the Lease and Re-Let the Premises?
Any surrender of the lease requires the agreement of both parties, in the usual way.
Whilst a tenant is in administration, the usual position is that a landlord may not forfeit the lease without either the consent of the administrators or the permission of the Court. A landlord may request the administrators’ consent to forfeit. If the administrators refuse, their reasoning should be examined carefully- the Court may take a different view.
If a landlord considers it likely that a tenant may shortly enter administration, it may wish to consider forfeiting the lease at an earlier stage and before these protections come into effect (assuming of course that the landlord has grounds to do so).
There is a Third Party In Occupation: What Are My Rights?
Administrators often let third parties into occupation of premises- often in breach of the terms of the lease! This is usually done as part of a sale of the company’s assets, by which the administrators permit the purchaser to occupy pursuant to a licence pending a formal application for landlord’s consent to assign. While the moratorium makes it harder to take action against the administrators, such action will usually be a breach of the tenant’s covenant not to assign without consent and the usual rules and the provisions of lease will apply to any subsequent application for consent that is made. You should check your rights under the lease carefully as this may be an opportunity to insist on the provision of additional security for the new tenant’s covenants and/or payment of any arrears as a condition of the assignment – most modern leases will contain provisions that entitle the landlord invoke such conditions.
When dealing with such applications, it is worth remembering that the landlord’s duties under the lease and statute are owed to the tenant, not the proposed assignee.
If your preferred course is to recover the premises, it may be possible to pursue a forfeiture strategy based on the breach of the tenant’s covenants but this will require the court’s permission if the administrators will not consent to it. It may not be possible to convince the Court to grant consent to forfeit where the occupation of the premises by the third party is helping to achieve the aims of the administration, and rent is being paid.
How Do I Get the Court’s Permission to Forfeit or Enforce the Adminstrators’ Duty To Pay Rent?
The administration will be listed in the High Court and, like most creditors, landlords can make applications in the administration for the Court to determine. These applications are governed by the insolvency legislation, so the Court will consider your application in the context of the whole administration process and, if successful, its impact on other creditors. These additional considerations can sometimes see one creditor’s rights not enforced even though there appear to be clear grounds for doing so on a purely contractual level. That said, many applications can and do succeed, so it is important to take stock early and execute any strategy with the benefit of expert advice.
Victoria Du Croz and Amy France share how housing need is an age-old issue with Property Week
2 August 2024
Views
The government must factor older people’s accommodation needs into its plans to boost housing supply.
It has been refreshing to see planning policy at the forefront of the new Labour government’s initial announcements. Many in the industry have welcomed the approach being taken by the government and we certainly need ambitious growth plans for housing delivery if we are to redress the under delivery of the past decade. However, we also need a nuanced approach to ensure a range of housing is delivered to meet the needs of all members of society, and the delivery of specialist housing for older people in particular needs to be addressed.
A recent JLL report indicates that there will be a shortage of up to 46,000 later-living homes in the next five years. The challenges facing the sector include competition from mainstream housebuilders for sites; the impact of inflation on build costs and viability; and the planning system, which continues to stymie development.
A review of appeal decisions for later-living development indicates that establishing the ‘need’ for these facilities takes up a huge amount of time at the planning committee stage and subsequently at appeal. The difficulties are in part due to the range of care models available, which often leads to planning applications for developments where the residents will have specific care requirements.
However, need assessments carried out by local authorities often use data from the Care Quality Commission based on the number of registered beds available (ie, the maximum number permitted, which may be more than the actual number provided) and apply that to their duty of care to provide support to all those over the age of 65.
The data available is often not directly applicable to the proposed development, so assumptions and extrapolations need to be made. Further clarity is urgently needed to help local planning authorities formulate local plan policies that meet the needs of the communities in their administrative area.
The National Planning Policy Framework (NPPF) requires local planning authorities to plan for housing to meet the needs of older people, with the 2023 NPPF changes expanding that definition to reference “retirement housing, housing with care and care homes”. However, this does not encompass the wide range of available models, such as integrated retirement communities, sheltered housing, extra care/assisted living and older persons shared ownership.
Simplistic use classes
The current Use Classes Order is too simplistic, with residential accommodation either failing within class C3 (dwelling houses) or class C2 (residential institutions). Many later-living developments will look to cater for residents with a range of care needs and with the flexibility to meet their changing needs in the future. The ability to provide for a range of care options within a facility without needing planning permissions or without rendering the whole facility sui generis would be welcomed.
The later-living sector continues to wait with bated breath for the findings of the Older People’s Housing Taskforce, which was set up to look at options for the provision of greater choice, quality and security of housing for older people. The taskforce’s objectives were to examine how to increase supply and improve housing options for people in later life, as well as to explore how to overcome obstacles to this goal. The taskforce submitted its report to the previous government on 22 May 2024. However, the general election was called before any action could be taken.
It is hoped that the new Labour government will pick up the taskforce’s report swiftly and look to implement its recommendations as a priority. Those in the sector will be looking out for proposed changes that will bring more clarity to the planning system, so that specialist schemes for older people’s housing are not inadvertently being disadvantaged at the planning stage for the reasons set out above.
Given that Labour has made it clear it aims to build 1.5 million new homes within the first five years of taking office, it would also be welcomed if the government could set out an ambitious target for the proportion of this housing that will be set aside for the specialist later-living accommodation.
There is much to be optimistic out of government in these early days of the new parliament. We can only hope that these announcements result in concrete proposals and policies that can effect change sooner rather than later, particularly for the later-living sector.
This article was released In Property Week on 01 August 2024 and can also be read behind the paywall here.
Time to loosen the green belt? Victoria Du Croz quoted in Property Week
12 July 2024
Views
The Labour Party has pledged to unlock ‘grey-belt’ land to tackle the housing shortage – but what planning issues could they be faced with? Head of Planning, Victoria Du Croz, shared her views in Property Week.
“We don’t have a legal or policy concept of what grey belt is, The National Planning Policy Framework (NPPF) sets out five purposes of the green belt. So, would developers have to show that area of green belt doesn’t meet all five of those purposes, just one of them or some of them for it to be considered grey belt?
I think (Labour’s proposal) shows the misunderstanding about what green-belt land is and what purpose it serves… Many think it’s quintessential rolling green fields, but green-belt land doesn’t need to have any ecological or biodiversity value or any right of access for the public.”
Read the full article here to understand more about the planning hurdles that could impact Labour’s proposed plans.
Diversification opportunities for farmers following recent planning changes
30 May 2024
News
There has been some good news for owners of farms and estates with the government confirming a series of reforms to permitted development rights under Classes Q and R of the GPDO 2015 which will make diversification and growth on farms and estates easier.
Class Q covers the change of use from agricultural buildings to dwellinghouses, and Class R covers the change of use from agricultural buildings to various commercial buildings. The new reforms introduce the following changes:
An increase from five to ten on the maximum number of residential dwellings which can be created from a barn conversation;
An increase from 865m2 to 1,000m2 on the total permissible floorspace for residential dwellings created from barns, with a limit of 150m2 per individual unit;
The ability to construct small single storey extensions to barns (subject to certain size constraints);
An extension of the permitted uses to which agricultural buildings can be converted under Class R. The new permitted uses include outdoor sport and recreation facilities, larger farm shops, and farm training centres; and
An increase from 500m2 to 1,000m2 on the limit to the total internal floorspace of buildings that can be converted under Class R.
As of 21 May 2024, all of these changes have now taken effect. However, it is worth noting that the changes will not apply to ‘Article 2(3) land’ such as National Parks, World Heritage Sites, the Broads, Areas of Outstanding Natural Beauty, or conservation areas. In addition, the changes are subject to a number of more specific parameters, limiting their scope in places.
The changes have come as a result of the Department for Levelling Up, Housing and Communities’ consultation on introducing additional flexibility to the agricultural sector, published last year. The intention behind the changes is to encourage greater housebuilding and commercial development on farms, areas which have typically lagged in light of stringent planning requirements. It will also help create new sources of income, diverse business opportunities and increase the value of property. It remains to be seen whether the major parties will commit to any further changes to permitted development rights going into the upcoming General Election, but the recently published DLUHC consultation on changes to permitted development rights certainly indicates that this could be the case.
Victoria Du Croz speaks to Property Week on the slow path to planning reform
1 May 2024
Views
Partner and Head of Planning, Victoria Du Croz, met with Property Week to discuss the planning system and the government’s decision to increase application fees.
Many people attribute delays in the planning system to under-resourced local planning authorities. However, the government’s solution – to increase planning application fees at the end of last year – caused an outcry among developers, with many rushing to submit applications before the fees hike.
Much of the outcry focused on the government’s refusal to ringfence income from the increased fees so that it could only be spent within the planning department of the local authority. Given how cash-strapped local authorities are, it would be understandable if income generated from fees was diverted to prop up other council services.
In practice, this means many developers are paying the increased application fee and are still being asked by local authorities to enter into a planning performance agreement (PPA). PPAs will usually set out an agreed programme for determination, including commitments on officer engagement in return for the developer paying a fee.
However, what can a developer do if the local planning authority does not keep to the determination programme set out in the PPA or fails to ensure a sufficient level of officer involvement? Many are calling for PPAs to have more teeth, but in practice what penalty could there be other than requiring the local planning authority to return the PPA fee?
The developer still would not have any certainty over the determination period, and the local planning authority would have to return money it has probably already spent.
The full article, published on 18 April 2024, can be accessed here behind the paywall.
Changes to planning controls bring consistency to enforcement rules and increased powers to local planning authorities (LPAs)
25 April 2024
News
Reforms which change the planning enforcement rules set out in the Levelling-Up and Regeneration Act 2023 (LURA) will come into force on 25 April 2024.
It will now be the case that LPAs can enforce against all breaches of planning control for a period of up to 10 years. This marks an increase from the previous 4-year time limit for bringing enforcement action against building or engineering operations and changes of use to a single dwelling-house. The single 10-year tariff for bringing enforcement will apply where alleged operational development was substantially completed on or after 25 April 2024, or where the date of an alleged change of use to a single dwelling-house was on or after 25 April 2024. These changes will not apply where the alleged operational development or change of use occurred before 25 April 2024, as confirmed by a Government statement published earlier this month; this will be welcome news to developers, who will be ‘in the clear’ for enforcement action where an LPA has not taken action within 4 years and where they are able to demonstrate that any unlawful use of a single dwelling-house or unauthorised works were substantially completed on or before this date.
The regulations also give power to LPAs to use Enforcement Warning Notices (EWNs). EWNs constitute the taking of enforcement action and allow LPAs to invite regularisation applications when it appears that a breach of planning control has occurred.
The restriction on appeals against enforcement notices is a further key change to planning controls. Changes to Ground (a) (an application for retrospective planning permission) will limit circumstances in which an appeal against an enforcement notice can be brought on Ground (a). This will apply in circumstances where an application for planning permission has already been made to regularise the breach. These amendments do not apply to appeals against enforcement notices that were issued, and have not been withdrawn, before 25 April 2024.
The Planning Inspectorate will also have the power to dismiss appeals against enforcement notices and certificates of lawfulness on the grounds of undue delay by the appellant in progressing the appeal, unless steps are taken by the appellant, within a period specified by notice, to expedite the appeal. These changes do not apply to enforcement appeals or appeals against a refusal to grant a certificate of lawfulness that were made before 25 April 2024.
The Secretary of State also gains the authority to determine the procedure for lawful development certificate appeals.
Please get in touch with our Planning Team if you would like to find out more.
Can the Government’s new Office-to-Residential rules solve the UK housing crisis?
12 March 2024
Views
Andrew McEwan, Senior Associate in the Commercial Real Estate team, recently wrote an article for CoStar on the new legislation around permitted development rights and how it can assist the UK housing crisis.
Housing Secretary Michael Gove recently announced legislation to relax the rules around permitted development rights. New flexibilities came into force on 5 March and have been introduced to support office-to-residential conversions, a trend that has been gathering pace over the past few years.
The government has made the changes with the intention of creating a more favourable planning context to address the fact that a large proportion of office buildings are becoming obsolete (due to the twin effect of more home-working and tightening sustainability requirements) while we remain in the grips of a worsening housing shortage.
Office-to-residential conversions have, however, produced inconsistent results to date, and the latest changes are likely to be met with opposition from local authorities who continue to face a lack of funding which would help alleviate some of the delays experienced with the ‘traditional’ planning regime.
You can read the original article, published on 29 February 2024, behind the paywall here.
Q&A: Five minutes with Victoria Du Croz, Head of Planning at Forsters, featured in Property Week
1 March 2024
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Head of Planning, Victoria Du Croz, spoke to Property Week in their regular ‘Five Minutes With’ column on how she got started in property, her favourite destination, her top book and album recommendations and the celebrity she would most like to meet.
How did you join the property industry?
“I was able to do a few law modules while studying English literature at Durham University and found the subject fascinating. I got accepted on to a vacation scheme at Lovell White Durrant (now Hogan Lovells), at the end of which I was offered a training contract. After qualifying, I could not decide between international banking or planning, but I am so relieved I chose the latter and have not looked back.”
What does your job entail?
“I am head of planning at Forsters, working closely with my commercial and rural estates colleagues to advise on all aspects of planning law. We advise major developers, institutional investors, housebuilders, high-net-worth individuals, strategic land promoters, landowners, local authorities, film studios, hotel operators – basically anyone who needs planning law advice.”
What do you like most about the property industry?
“I love that there is a physical building at the end of it. I am incredibly proud of the schemes I have worked on – my family says that from the way I talk about the finished buildings, you would think I had personally built them.”
The article was first published on Property Week on 16 February 2024, and is available to read in full here, behind the paywall.
The overriding concern of the industry is that the government’s proposals will lead to even less housing being delivered – Victoria Du Croz quoted in the Financial Times
20 December 2023
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Planning Partner, Victoria Du Croz, has been quoted in the FT article entitled “Michael Gove insists he has not ‘abandoned’ local housing targets.”
Speaking on Tuesday 19 December, as the revised National Planning Policy Framework (NPPF) was published, Michael Gove said that local authorities will be given three months to deliver housing plans or face losing planning powers.
In the article, in which housing and property industry groups responded to Gove’s speech, Victoria du Croz, partner at Forsters said “The overriding concern of the industry is that the government’s proposals will lead to even less housing being delivered. The government has produced no convincing evidence to demonstrate how their reforms will deliver more housing.”
To read the full article (behind a paywall) please click here.
Spurs result flags up venues’ residential neighbour disputes – Victoria Du Croz speaks to Property Week
27 November 2023
Views
Head of Planning, Victoria Du Croz, has spoken to Property Week on how a legal dispute recently lost by Tottenham Hotspur football club has returned attention to the debate over the balance of rights and obligations for both businesses and local residents.
Commenting on how the club had objected to proposed residential developments close to their stadium (and had had a subsequent judicial review dismissed on the grounds that access to the stadium would not be unreasonably impacted), Du Croz wrote that:
“Spurs was looking at how it could future-proof itself and force Lendlease to allow very reasonable terms through the planning system, without having to rely on a commercial negotiation.”
No guarantees
Businesses such as these inevitably come with noise and disturbance to the local area, with a previous example being that from 2011 in which a proposed development within earshot of Elephant & Castle’s Ministry of Sound nightclub threatened the club’s operation.
Du Croz explained that the Ministry of Sound eventually settled its case with a compromise, writing that:
“The owners of the new residential development agreed to allow the Ministry of Sound to make a certain noise level without it being considered a nuisance. That then enabled permission to be granted.”
She caveats this story with the point that the introduction of the ‘agent of change’ principle to the National Planning Policy Framework has since altered such circumstances. Now, “the onus is on new residential schemes to put in place noise-mitigating measures.”
This principle, however, does now demand that new developments have no impact on businesses. What it emphasises, Du Croz believes, is the need for “entertainment operators to diversity and in [reaching agreements] agree what the noise level should be.”
“You want to allow for diversity. Football stadiums often have pop concerts that exhibit a different noise matrix [to football].”
Light issues
Beyond noise, the effect of light is also an issue currently being contested, with current attention current fixed on the proposed MSG Sphere development in Stratford. On this, Du Croz explains that the law isn’t as developed for light as it is for noise.
“The sphere is visually dynamic, but potentially visually intrusive. There’ll be planning policies in place to ensure that any new developer doesn’t adversely impact people’s amenity and access to light, so they will have to contend with that.”
This article was originally published by Property Week on 15 November 2023 and can be read here in full (behind their paywall).
Releasing 1.4% of greenbelt could deliver 1m homes – Matthew Evans quoted in Property Week
25 August 2023
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Planning Counsel, Matthew Evans, has been quoted by Property Week reacting to a recent report that has revealed that building on just 1.4% of the green belt, would accommodate the government’s target of 1m homes before the next general election.
The research, conducted by Wood Harwick, claims that only 8.7% of England’s land area is of development use, compared to 12.5% which is designated as green belt. They therefore believe that building on the green belt is a solution that has been largely overlooked.
In response to this, Matthew commented ‘We need to be looking at land across the board, considering and balancing its relative value and the potential contribution it can make to housing our growing population. Not all green belt is created equal, and we need to move to a place where the quality of greenbelt is graded.’
This article was first published in Property Week on 24 August 2023 and is available to read in full here, behind their paywall.
Experts call for Crooked House to be restored to former glory – Matthew Evans speaks to Property Week
24 August 2023
Views
Planning Counsel, Matthew Evans, has been quoted in Property Week’s latest piece on the ‘iconic’ Crooked House in Dudley following its recent demolition.
The demolition of the quirky British pub following a fire earlier this month has ignited public outrage and calls for it to be rebuilt. An investigation into arson in ongoing however locals want to know if it can ever stand again, and what a rebuild may look like.
Property Week noted that the solution may lie 120 miles away at a pub in Maida Vale, London. The Carlton Tavern was re-built following its demolition after locals campaigned for it to be reinstated. Matthew provided commentary on the options available to the local planning authority to try and ensure the Crooked House is rebuilt as quickly as possible – likely through the issue of an enforcement notice giving a definitive timescale for its reprovision. Although such notices can be appealed, it is assumed that with this level of public and political pressure, such an appeal should be determined swiftly.
This article was first published in Property Week on 24 August 2023 and is available to read in full here, behind their paywall.
A blend of features in vineyard planning – Victoria Du Croz writes for EG
16 August 2023
Views
Head of Planning, Victoria Du Croz, has written a piece for Estates Gazette on the important planning implications of the supply network involved in the UK’s wine production.
Many vineyards and wineries operate through a network of supply contracts. Grapes may be grown at one vineyard and processed on site. More commonly, grapes will be grown at a variety of locations and processed by a single winery, or a specific vineyard might contract with a winery to process their grapes. Many vineyards in the South East, for example, will grow their grapes, send them to be processed elsewhere, then bring the bottled wine back on site for tours, tastings, refreshments and sales. Furthermore, many vineyards and wineries are continuing to diversify, offering a range of experiences, including tours, tastings, overnight stays and the hosting of weddings and corporate events.
The practical realities of commercial operations of vineyards and wineries’ commercial operations means industry experience is needed to advise on the planning position and experience is critical. A vineyard with a commercial winery, tastings and tours, etc can look like a different business in each month of the year – the shape of the business will differ from season to season, much more than a traditional arable farm may do.
It is essential to understand what is actually happening on the ground when the year is viewed in the round and to map this on to the current planning framework. Many vineyards are located in designated areas of outstanding natural beauty, which have particular planning restrictions for their preservation. Most of these vineyards will be agricultural in nature, but can stray into commercial use classes if the commercial activity is not directly ancillary to the viticulture, leaving them open to enforcement action if they do not have the correct consents in place.
Full-bodied case
In a recent appeal in respect of the Cuxton Winery, in Kent, an inspector had to grapple with whether there was a material change in use at the vineyard if the grapes were taken off-site for wine production and then returned for storage and sale. Previously, Medway Council had granted a certificate of lawfulness for agricultural use that expressly permitted wine to be produced, stored and sold on site. The certificate made no express mention of the lawfulness of providing tours, tastings and refreshments, nor for selling wine produced elsewhere. The appellant sought revised wording in a certificate of lawfulness to cover these two points.
As noted by the inspector, in such applications the onus is on the applicant to provide sufficient evidence and accordingly the decision is fact-specific. However, it does raise an interesting point about what is “incidental” to the growing of grapes to produce wine, which is accepted as an agricultural activity. The inspector considered that wine production is a lengthy process to make a different product and is therefore akin to an industrial process (in contrast to simply crushing grapes). Previously, case law has held that the on-site production of wine is incidental to the primary use of that site for the growing of grapes.
The inspector considered that, based on the information before him, the appellant had failed to demonstrate that it would be ordinarily incidental and reasonably necessary to process up to 20,000 bottles of wine annually off-site as part of the primary agricultural use of the site. The inspector accepted that some off-site production could be regarded as incidental but, in this case, it appeared all the wine would be produced off site. While not entirely clear from the decision, it seems to be the return of the entirely different product from the off-site industrial process, ie the wine, for the subsequent storage and sale which meant there was a material change in use from the main agricultural use of the site.
The inspector also rejected the proposed wording in the certificate for the tours, tastings and refreshments, which did not seek to quantify the frequency and extent of such activities. The inspector considered that if the wine were to be produced on site, the scope and quantity of tours would potentially broaden, which may mean the tours, etc would cease to be incidental. Again, the inspector did not consider that the appellant had discharged the necessary burden of proof. Accordingly, the appeal was refused.
Endnote
The decision serves to highlight the importance of applicants discharging the burden of proof for certificates of lawfulness by providing sufficient evidence. It also demonstrates the potential pitfalls in seeking to diversify agricultural land against the backdrop of our historic and restrictive planning use class system.
The decision is one of many recent planning decisions affecting this industry. With WineGB reporting there are more than 940 vineyards and over 200 wineries in Britain and, as the industry is still expanding, there are likely to be more.
The matter is not helped by broader planning policy. Although the National Planning Policy Framework supports a prosperous rural economy, each local planning authority has its own local plan and it is rare for these to address diversification of vineyards and wineries adequately. Advice should be sought at the earliest opportunity on the scale and scope of any diversification plan including whether and what planning applications need to be made.
The diversification of vineyards is becoming increasingly important from a commercial standpoint and for the future-proofing of such businesses. Although seemingly welcomed in the UK, it requires careful thought and consideration from a planning perspective.
This article was originally published by EG on 15 August 2023 and can be read here in full (behind their paywall).
Industry reaction to Gove’s housing plan – Victoria Du Croz speaks to the Press
25 July 2023
Uncategorized
Partner and Head of Planning, Victoria Du Croz, has been quoted in numerous broadsheet and industry publications this week on the government’s response to the recent local elections.
Du Croz says that: “The Government and DLUHC appear to be having a knee jerk reaction to the results of last week’s local elections and the impending General Election in 2024, essentially seeking to demonstrate that action has been taken to deliver on housing and development in the current parliamentary term.
“A focus on inner cities makes sense, given the Conservative’s aversion to delivering development on the green belt, but the reality of bringing more homes to the cities will mean building high in order to reach the necessary density.
“Neither brownfield sites nor conversions of office to residential buildings have delivered the number of new homes that are needed across the country to date. Re-focusing on these planning mechanisms, by expanding permitted development rights to shop and commercial conversions, is unlikely to boost housing numbers to the levels that are needed.
“[Monday 24th July’s] announcement failed to recognise the vital importance of a cohesive vision for our towns and cities, that housing is just one element of growing the economy and supporting people. Housing is needed alongside job creation, space for warehousing and a retail and leisure strategy.”
A list of the publications featuring Du Croz’s comments is featured below:
BPF leads industry calls to scrap infrastructure levy plans – Victoria Du Croz and Helen Streeton speak to Property Week
13 June 2023
Views
Partner and Head of Planning Victoria Du Croz, and Partner and Head of Build to Rent Helen Streeton, have featured in Property Week’s latest piece on the BFP’s opposition to government proposed new infrastructure levy plans.
The British Property Federation (BPF) urged the government to abandon the plans for the levy, claiming it would add new challenges and instead called for reform of existing planning contributions.
The BPF highlighted the difficulty it said local authorities would have setting viable levy rates, particularly for brownfield and urban development sites, due to land values and build costs varying site by site and by land use. It also claimed under a single, more rigid levy, the mechanism for calculating affordable housing contribution would raise less as it would not be site-specific.
Victoria Du Croz shared her concerns on the fundamental problems with the government’s proposals, including a failure to focus on securing the actual development of infrastructure.
She states that “Most local opposition to development is due to the perceived adverse impact on existing infrastructure,” she said. “If infrastructure comes forward in a timely manner, it would alleviate this opposition, but local authorities are struggling to deliver infrastructure for new development under the current system due to resourcing constraints.
“The new levy does nothing to remedy this challenge and adds more layers of complexity. It will require viability assessments for types of development that currently don’t require them, including industrial and offices. It is difficult to see how local authorities will have the additional capacity needed to handle the new volume of assessments.”
Helen Streeton echoes these concerns warning that the levy runs the risk of further stifling new home development, increasing developers time securing planning consent.
She adds: “As infrastructure needs to be delivered in advance, or in tandem with new development, the government is proposing to introduce two new routes: delivery agreements for ‘integral infrastructure’, which will work alongside planning conditions for onsite infrastructure, like play areas; and levy-funded infrastructure, which will pay for the community infrastructure.
“It is difficult to see how this approach simplifies matters and is any different from having CIL plus Section 106”.
This article was first published in Property Week on 12 June 2023 and is available to read in full here, behind their paywall.
The battle over development in the greenbelt continues to rage with the Prime Minister restating the Tory party pledge to protect the greenbelt following Kier Starmer’s comment that it should be built on “where appropriate”.
On the ground (pun intended), appeals against local authority refusals to grant planning permission for development in the greenbelt are being allowed. Last week saw planning permission granted on appeal for the redevelopment of a site in the green belt comprising the demolition of a non-designated heritage asset and the erection of a new care home (Class C2) including a dementia centre.
It was accepted that the proposal was inappropriate development in the green belt. However, the Inspector found that the benefits of the scheme (primarily the need for such a facility) clearly outweighed the definitional green belt harm, the negligible harm arising from the loss of openness and the harm arising from the total loss of a non-designated heritage asset. Accordingly very special circumstances existed and the appeal was allowed.
At appeals for Use Class C3 housing development in the greenbelt a lot of time is often spent arguing over the extent of unmet housing need in the local authority’s area. Establishing the extent of unmet need for care home beds is often even harder and clearly a lot of inquiry time was taken up at this appeal trying to establish if the extent of the unmet need was “significant”. The difficulties are in part due to the range of care models available which often lead to planning applications for developments where the residents will have specific care requirements eg dementia care, care for those aged 80+ . However, need assessments carried out by local authorities often use data from the Care Quality Commission based on the number of registered beds available (ie the maximum number permitted, but which may be more than the actual number provided) and apply that to their duty of care to provide support to all those over the age of 65. The data available is often not directly applicable to the proposed development so assumptions and extrapolations need to be made. As the inspector noted, “the complexity of the data, together with differing methods for projecting future need, using different assumptions and definitions, makes deriving reliable figures over an extended period inherently problematic”.
Given the local and national politics surrounding development in the green belt, many care home developers with green belt sites will be anticipating a refusal of any planning application at the local level and will factor in an appeal into the development programme. However, as this appeal demonstrates, a lot of time will be required to present a clear, justified need argument and inquiry times are likely to be lengthier to allow for such arguments and the related evidence bases to be properly analysed. Many in the industry were frustrated that the Government’s proposed changes to the NPPF did not go far enough in requiring local authorities to allocate sites for retirement living/care homes which would remove some of these lengthy arguments around need.
Government’s proposals to increase planning fees ‘broadly welcomed’ – Matthew Evans speaks to Property Week
27 April 2023
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Planning Counsel, Matthew Evans, has spoken to Property Week’s Ciaran Nerval on how the government’s proposals to “hike up planning fees for developers” have been “broadly welcomed”.
However, industry sources have called for “real change” to planning departments through the provision of additional funding.
Evans agreed that the proposals to increase planning fees (by 35% for major applications and 25% for all others) were “broadly welcomed”.
However, he said these proposals needed to deliver “real change to local authority planning departments and translate effectively into increased resource.
“Local authorities have seen budgets slashed due to austerity-era policies, so to see real change we need to ensure the funds generated from increasing planning fees are ringfenced and spent within the department; without this, any change to the fees won’t deliver genuine results.
“There is no quick solution, but there is an urgent need to establish a long-term plan that boosts resource, improves retention and is closely monitored; otherwise, we run the risk of slowing down economic growth, which is so intrinsically linked to the planning system and new development.”
This article was first published in Property Week on 26 April 2023 and is available to read in full here, behind their paywall.
We need to get the green belt back on the agenda’ – Matthew Evans writes for React News
12 April 2023
Views
Planning Counsel, Matthew Evans, has written a piece for React News on the need for the government to develop its strategy when it comes to housing delivery by once again focusing on green belt sites, rather than solely brownfields as they are currently.
Evans explains that while the government’s recent emphasis on the redevelopment of brownfield sites has been logical, noting to factors such as location, ecological value and offset considerations. However, many of the straightforward sites have now been developed, meaning only “difficult and constrained sites remain.”
The costly redevelopment of these challenging brownfield sites needs to be understood against the fact that they are better suited to high-density apartments rather than family housing (the latter of which is more greatly needed). While the government has put forward £60m via a new “Brownfield Land Release Fund 2”, this is an insignificant sum when looking at the wider issue.
Evans writes: “If we truly want to build the housing the country needs, green belt reviews need to be put firmly back on the agenda. It is a highly politicised topic, but it is crucial. There needs to be careful consideration of green belt versus protected. No one is advocating for runaway urban sprawl, but there are a lot of poor and allegedly green belt sites that are hardstanding or generally low quality – neither of which deserve the high level of protection that green belt designation affords.”
He goes on to recommend a new, additional categorisation of these sites (akin to the recent proposal for Grade-III buildings) that will differentiate between true green belt land and low-quality land that is suitable for housing developments.
“There are places in the home counties that haven’t reviewed their green belt for a very long time, and with changes to the national planning policy framework stating that green belt reviews will not need to be carried out to meet housing need, there is little chance of this changing now.”
Evans concludes by advocating for the need for greater public awareness of the sort of land that is being (unnecessarily) protected, framed against the trends of dwindling supply and rising house prices.
Without a reconsideration of both a reliance on brownfields and the funds required to do so, “it is hard to see how we are going to deliver on growth ambitions and provide the homes that people want and need.”
This article was originally published by React News on 29 March 2023 and is available here in full (behind their paywall).
Industry warns of development delays for Infrastructure Levy – Victoria Du Croz speaks to Property Week
27 March 2023
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Partner and Head of Planning, Victoria Du Croz, has spoken to Property Week about the government’s proposed new Infrastructure Levy, the consultation for which launched last week, and the likelihood of it causing delays to future developments.
Designed to replace section 106 contributions and obligate developers to pay a fairer share towards local infrastructure, the levy will give local councils the power to dictate what proportion of it is delivered through affordable housing developments and how much is put toward local infrastructure.
The proposed changes would be introduced through a 10-year ‘test and learn’ period, regarding which Du Croz said that “[it] doesn’t give developers certainty on how the new Levy will work in practice”.
“This could lead to delays in sites coming forward while any teething problems are fixed – It would be better if government spent time getting the new regulations right, rather than rushing them through and looking to address any issues during the transition period.”
The consultation is due to conclude on 9 June 2023.
This article was first published in Property Week on 24 March 2023 and is available to read in full here, behind their paywall.
Bisnow UK Life Sciences Real Estate Annual Conference – 6 Key Takeaways
6 March 2023
News
On Thursday 2 March 2023 Construction Partner, Emily Holdstock, and Commercial Real Estate Partner, Anthony Goodmaker, attended the Bisnow UK Life Sciences Real Estate Annual Conference at the White City Innovation District.
The overwhelming message from the many industry-leading speakers was one of optimism and growth – here are their 6 takeaways from the event:
1. Exponential Growth
Whilst some predicted the boom of this sector a decade ago, the pandemic has no doubt accelerated the growth of Life Sciences as a key real estate asset class. 5 years ago there was next to no lab space in London. Now it is really starting to rival Oxford and Cambridge for dominance in the market. In truth, all three will prevail together as ageing populations and increased Government investment in healthcare drive the continued demand for Life Sciences real estate in the UK. And the shortage of current space remains chronic in spite of a significantly increased development pipeline for the coming years.
2. Know Your Occupiers
Whilst most startups and university research spin-offs just require a simple lab and small adjacent office space as a starter for 10, their needs can quickly change as investment funds pour in. The need for a more specialised and bespoke workspace can arise overnight and so being nimble and being in a position to provide a variety of facilities for a variety of tenants on the same campus is key to building long term relationships with occupiers.
3. Co-Location is Key
The life sciences ecosystem is crucial for companies in sharing infrastructure, facilities and knowledge. A single life sciences building without a surrounding cluster of chemists, biologists, biochemists, engineers, researchers, universities and hospitals may be less attractive to smaller start-ups who rely on the collaborative benefits that clustering brings. Innovation districts are not just a buzzword, but an operational need.
4. ESG Concerns
Life sciences buildings are intensive users of energy – up to 5 times more than a standard office. But unsurprisingly for a sector whose users lead the way in innovation and technology, things are starting to change as the push for increased digitisation and reduced reliance on gas will help keep the sector on track to meet Government sustainability requirements.
5. Live Work Play
The development of new Life Sciences clusters in the UK, particularly new facilities in the outskirts of Oxford and Cambridge, must be accompanied by sufficient provision of adequate housing, transport, healthcare, schools and nurseries. Young people are the main workforce for this sector and suitable 24/7 infrastructure is needed to ensure that key Life Sciences locations are attractive to them as a place to live, work and play.
6. Institutionalisation
Real estate must not become the blocker that restricts the output of this fast-paced sector. All the new space required to meet the growing demand must be high tech and complex, and the real estate sector needs to get its head round it quickly. Site and sector specific knowledge for owning and operating such highly complex assets means that while institutional capital wants to be in the sector, there are still real barriers to entry. Unlocking the full potential of institutional investment will be key to ensuring that that demand can be met sooner rather than later.
Design codes: a thing of beauty, or else… – Victoria Du Croz writes for EG
11 January 2023
Views
Partner and Head of Planning, Victoria Du Croz, has written for EG on Michael Gove’s recent statement to the Centre for Policy Studies that the government will do everything in its power to prevent the development of homes that are “not aesthetically of high quality”.
This includes, Du Croz says, a threat to call in planning applications that are “not beautiful”.
The creation of new design codes is one tool that the government plans to use to prevent “ugliness” being imposed on communities. But there are fundamental issues with design codes, not least that design by its very nature is subjective.
Local authority-wide v granular
The National Planning Policy Framework has outlined that the new design codes should be set at the local authority level. However, borough-wide design codes fail to recognise the different street level vernacular. Walk down three to four roads in most local areas and you will see a mix of architectural styles, from Georgian townhouses to listed 1960s council housing and everything in between.
Borough-wide design codes will either lack enough specific detail, rendering them meaningless, or be so generic that they will contribute to the creation of identikit housing – a criticism already volleyed at new build schemes. If local authorities try to make them more granular to better reflect specific areas, it will be an incredible burden and at considerable cost, at a time when local authority budgets are seeing below inflationary increases over the next two years, before falling further to just 1% real term increases from 2025.
Many London local authorities already consult design review panels – impartial experts including architects and urban designers alongside engineers, sustainability specialists and built heritage experts – who provide advice in relation to the design of new schemes and public realm.
As well as having panels that can be called on to provide guidance, there are standards and policies to ensure new homes are built to a suitable standard in terms of space, light and quality. At the application stage, design and access statements, submitted alongside applications, go into detail on the design response to the local area and reasons for the proposed material palette.
Given that all these existing checks and balances are in place and are factored into a local authority’s decision, why should central government step in to alter that decision? Especially when call-ins can slow down delivery, running counter to the need for new homes.
Community Perspective
Part of the impetus for implementing design codes is to bring communities onboard with new development. And while you can go through planning portals and see people commenting on the design of schemes, most nimbyism stems from concerns about additional strain on public services and infrastructure.
The frequent refrain at public consultations is about the difficulty in getting a doctor’s appointment, concern about securing a place at the local school or the state of the local roads – all things that the community infrastructure levy is supposed to be allocated towards.
The problem with CIL in its current guise is that it is not ringfenced to deliver these improvements in the same part of a town or city as the development is happening in, meaning that local residents cannot see new infrastructure being delivered alongside the new development to alleviate pressure on services in their local area. All they see is new homes and the challenges that come with this.
Reform CIL, force local authorities to spend the money and spend it in the local area where housing is being delivered and you could remove some of these objections. Ultimately, local communities do not rail against new developments just because of how they look, it runs much deeper than that.
Poundbury (pictured, above) – often held up as the exemplar on the use of design codes (the Duchy of Cornwall created a Poundbury Design and Community Code) – not only divides opinion, it also has wider cost implications. Replicating Poundbury fails to recognise the importance of having a range of housing products on the market to cater to different needs.
This does not mean bringing forward sub-standard accommodation, but it does mean recognising that sourcing specific materials and bringing forward a range of housing designs can affect both the price for the buyer and the viability of a scheme – meaning less affordable housing is delivered.
It would also be a mistake to think that Poundbury has “worked” because of the design of the homes, when in fact there is a lot to be learnt from the integration of shops, business and even factories alongside the new homes. It is this interaction between uses that makes for successful development, especially the consideration and incorporation of employment land.
Getting the priorities right
New home delivery continues to be a priority across the country, though the specific mechanism for deciding how many homes we deliver and where is currently a topic of debate. What everyone should be able to agree on is that the priority is delivering a range of high-quality homes.
This can be done while still respecting listed buildings, conservation areas and even local design palettes. What the UK planning system does not need is another layer of complexity adding cost and time to new home applications.
The government can surely use its power and resources to better effect than overturning decisions made by local planning authority committees – especially when beauty is in the eye of the beholder.
This article was originally published in EG (10 January 2023) and is also available to read here behind their paywall.
Powering the UK: Balancing National and Local Agendas – Victoria Du Croz writes for EG
6 September 2022
Views
In the second article in a three-part series on energy supply, Head of Planning, Victoria Du Croz, discusses national targets, local planning and the importance of biodiversity net gain.
The government’s plan to increase the UK’s energy self-sufficiency is urgently needed, but it doesn’t account for the inherent conflict between national policymaking and local political pressures.
At the local level there is already significant competing demand for land, whether for the delivery of much-needed housing, logistics, social infrastructure or national infrastructure. Now added into the mix is the top-down strategy to move away from a reliance on fossil fuels, increase clean energy sources and decarbonise the economy, resulting in a push for renewable energy projects.
April’s Energy Security Strategy adds urgency to existing energy policy. It was preceded in December 2020 by the government’s energy white paper, Powering our Net Zero Future, which built in turn on existing policy commitments set out in the Ten-Point Plan for a Green Industrial Revolution and the National Infrastructure Strategy. Those documents set out the government’s vision of how the UK would make the transition to net zero by 2050.
While the cost-of-living crisis and increased scrutiny on gas supplies from Russia may have shifted the dial slightly in terms of local sentiment towards energy projects, there is a long way to go to deliver the wind farms, solar farms and supporting infrastructure to make the UK self-sufficient and net zero.
The government’s decision in early June to permit new drilling in Surrey to establish the size of a natural gas field highlights the tensions between local and national sentiment, with Surrey County Council having blocked the project twice in recent years. It also highlights the increasing conflict at national level as the government grapples with decarbonisation at the same time as trying to alleviate cost pressures for consumers amid Russia’s war in Ukraine.
National need and local lobbying
Local decision-making and consultation are a vital part of the planning system. However, there is an inherent tension when the government insists on developments securing local support, while also pushing the delivery of key infrastructure that benefits the wider population.
In response to significant local opposition to onshore wind farms back in the 2010s, the government issued a written ministerial statement in 2015 preventing local planning authorities from granting planning permission for onshore wind farms unless the site was allocated as such in the development plan and local support could be demonstrated.
At the same time, the government also amended the Planning Act 2008 so that applications for onshore wind farms are determined under the Town and Country Planning Act 1990 rather than under the Nationally Significant Infrastructure Planning regime, owing to communities complaining that they felt excluded under the latter regime.
While this effectively killed off the delivery of onshore wind farms in some areas, in other parts of the country this tension has played out by local opposition being overruled and planning permission ultimately being granted. In the Scottish Highlands – albeit under a different consenting regime – local decisions to refuse wind farm applications have been overturned 40 times in the past five years, while secretary of state for business, energy and industrial strategy Kwasi Kwarteng has gone against recommendations from the Planning Inspectorate by granting planning permission for the multi-billion-pound Norfolk Vanguard Offshore Wind Farm.
A Politico poll from earlier this year indicated 72% of people would support new wind farms in their area, but query whether that support included residents located adjacent to such projects.
In the British Energy Security Strategy, the government states it will not amend the current planning regulations for onshore wind, in all likelihood meaning the 2015 written ministerial statement will remain in place. Instead, it will look to develop local partnerships for a limited number of “supportive communities who wish to host new onshore wind infrastructure”, with the incentive for the community of guaranteed lower energy bills. Given the current cost of living crisis, it will be interesting to see if such incentives mean there is competition to be one of the identified communities.
While the tide may be turning a little, objection from local communities is not going to blow over anytime soon.
Biodiversity net gain
Renewable energy, conservation and the environment have historically had a conflicted relationship. Often the sites that are seen as suitable locations for wind turbines and solar panels are those that are also species-rich. There have been cases of endangered birds being affected by wind turbine blades, as well as the ground intrusion and disturbance of building solar and wind installations.
In June 2022, there was a parliamentary debate on the location of solar farms owing to growing concern with them being constructed on greenfield sites. In response to the debate, the government confirmed it will consult on amending planning rules in England to strengthen policy in favour of solar development on non-protected land. However, given the reduction the cost of generating solar energy and the government’s commitment to a fivefold increase in solar energy generation, it is widely accepted that a considerable number (potentially 50%) of solar farms will need to be located on greenfield sites.
In the Environment Act 2021, the government introduced a biodiversity net gain target of 10% as a condition on all new planning applications. It can be considerably harder to deliver this level of net gain on solar developments located on greenfield sites, which are likely to have a higher starting level of biodiversity than brownfield sites.
In addition to the 10% uplift, there is an ongoing 30-year maintenance requirement for the biodiversity, which can be difficult to achieve in often densely packed solar farms. The ability for other developments to deliver biodiversity net gain off-site is likely to further increase competition for sites.
The case for cross-boundary co-operation
Who takes on responsibility for ensuring that sufficient energy projects are brought forward? Will local authorities be prepared to allocate sites for renewable energy projects? Where is the strategic direction to ensure that new wind farms and solar farms are being delivered in the numbers that are required?
The numbers are significant. To meet the government’s ambition for all energy to be from “clean sources” by 2035, offshore and onshore wind capacity would need to quadruple and double respectively. It is highly likely that some areas of the country will need to deliver most of the solar and wind farms the country needs. Wind and solar farms require significant space to generate the level of electricity the UK needs to meet its net zero targets, but sites that are deemed suitable often come up against other land designations, such as preservation of the green belt in the National Planning Policy Framework or areas of outstanding natural beauty.
The current duty to co-operate on local planning authorities when plan-making is set to be abolished through the Levelling-up and Regeneration Bill, and there is a lack of clarity on how it will be replaced to ensure cross-boundary co-operation between local authorities.
Some in the industry have been calling for the return of the controversial regional spatial strategies, revoked in 2010, which aimed to bridge the gap between local planning issues determined by local planning policies and nationally determined policy aspirations.
The Levelling-up and Regeneration Bill introduces “national development management policies”, which essentially aim to take “general” development control policies out of local plans, with these set centrally instead. These national development management policies – expected to include green belt designation and heritage protection – will be given the same weight in decision-making as development plans.
Currently, planning applications under the 1990 Act regime are determined in accordance with the development plan unless material circumstances indicate otherwise. The Bill is proposing to strengthen this so that material circumstances must strongly indicate otherwise before applications can be granted if they depart from the development plan – and, in future, national development management policies. It will be interesting to see whether the nation’s energy security and net zero ambitions will be sufficient material circumstances to support sites not allocated in the development plan.
The resourcing challenge
It is widely recognised that planning departments are severely under-resourced. The government’s latest initiative to increase planning fees, unveiled as part of the Levelling-up and Regeneration Bill, is being billed as one way to help address this. But an uplift in application fees is by no means a panacea for the challenges that local authorities’ planning teams are grappling with owing to funding cuts over the years, including low staff numbers and a huge volume of work. A quick job search highlights the issues, with hundreds of vacancies listed for planning officers at local authorities.
Yet the government has signalled that planning will be sped up for solar, and both on- and offshore wind. Which specific mechanisms will be used to bring forward more sites and achieve quicker determination of planning applications remains to be seen. The government could place an obligation on local planning authorities to allocate sites, but that would need to happen within the local plan process and sites could take years to work their way through the plan-making system, especially given the necessary transition provisions before the Bill’s proposed amendments to development plans.
The wind is definitely blowing in the direction of renewable energy generation, but there is a long way to go before the UK is running on clean sources.
This article was originally published in EG (27 June 2022) and is also available to read here behind their paywall.
Powering the UK: Renewables, Peaks and Troughs, and the Retrofit Revolution – Victoria Du Croz, Polly Montoneri (née Reeve) and Laura Haworth write for EG
The UK’s energy supply is headline news on a daily basis. The climate crisis, coupled with a cost-of-living crisis and Russia’s invasion of Ukraine, has put energy cost and energy creation under ever closer scrutiny. While the UK has moved away from coal-generated power over the past 40 years, it continues to rely on oil and gas for a considerable amount of energy creation. Our households are largely run on gas boilers. According to EDF, around 78% of the energy used to heat our buildings comes from gas and, while the government has brought in legislation to ban gas boilers by 2025, this will only apply to new homes. Even our national grid relies on burning gas to generate power and this is likely to continue in the short-to-medium term.
The UK has historically imported a portion of its gas needs from across the sea through several interconnectors that run from the British coast to France, the Netherlands and Ireland. In eight of the past 10 years, the UK has been a net importer of gas, but so far in 2022 the UK has been a net exporter to Europe as our European neighbours look to replace Russian supply.
The challenge is how the UK weans itself off its reliance on gas, meets its net-zero targets and becomes more self-sufficient in the long term, while remaining environmentally sustainable and improving biodiversity.
Renew the call for renewables
Over the past 30 years the percentage of energy generated via renewable sources – wind, solar and tidal – has increased, accounting for 43% of electricity generation in 2020 and making it the main source of the UK’s electricity over the year. While the statistics in 2020 were promising, the UK generated 14% less electricity from wind in 2021. This is a core issue with wind power generation – the amount that will be generated at any time is hard to predict, and our fallback is gas and nuclear. Prime minister Boris Johnson has asserted that all of the UK’s energy will be from “clean sources” by 2035. To meet this goal, offshore and onshore wind capacity would need to quadruple and double respectively.
A similar story stands for solar; the unpredictability of UK weather means energy supply from solar fluctuates year to year. It is, however, growing, with a combination of commercial and residential rooftop and ground mounts accounting for 4-5% of UK energy supply.
The reality is that 2035 isn’t that many years away and, while the government talks a lot about its green agenda, securing a grid connection and planning consent is hard. Even for the successful minority, moving from proposal to working wind farm takes years, not months.
The big question is: how do we go from renewable sources supporting a small percentage of the UK’s energy creation to 100%? There are several significant challenges to overcome to meet net-zero targets and deliver clean energy. The obvious answer is to build more solar farms and more wind farms, but this is no easy feat and, over a series of three articles, we will be exploring tensions within the planning system, conflicts between local and national policymaking, environmental sustainability and the challenging decisions for landowners.
Peaks and troughs
One of the fundamental challenges with increasing our reliance on renewable energy sources is peaks and troughs in supply. How do we capture surplus energy and store it for the future when the sun isn’t shining and the wind has stopped blowing?
In order to ensure sufficient year-round supply, the UK needs to massively increase its ability to store energy. Battery storage is essential to enabling increased reliance on renewable energy and will be pivotal in facilitating a transition to green energy. Whereas currently fossil fuels are used as back-up to provide a reliable, steady supply of energy, this will no longer be possible due to net-zero targets.
While it has been anticipated that battery storage systems could save the UK energy system £40bn by 2050, ultimately reducing energy bills, battery storage facilities can be contentious. During the planning process, resident groups and the local community object to battery facilities for myriad reasons, including wildlife concerns, visual impact and the requirement for supporting infrastructure.
Permission for battery storage used to be granted through the Nationally Significant Infrastructure Project process, but now permission can be granted under the Town and Country Planning Act 1990. While this makes it slightly easier (and quicker) to navigate, it increases the potential to come up against local opposition.
Another common concern associated with battery storage is safety. As the number of battery storage facilities increase, driven by demand for solutions to deal with intermittent energy creation from renewables, fires have broken out across the world. In addition, these batteries have a limited lifespan and the production of them (and processing of them once they have come to the end of their useful lives) will have its own environmental impact. The lithium used in these batteries is, after all, a finite resource and the technology involved in producing batteries for different purposes is still developing.
The other safety concern is disposal, due to the potential for leaks and contamination – if the chemical contents escape from battery casements this can cause damage to the local environment. While there may be concerns about potential liability for contamination under the Environmental Protection Act 1990, action taken by local authorities under this legislation is relatively rare. By far a greater risk is a claim for private and/or public nuisance by neighbouring landowners due to migrating contamination. The damage can be widespread (especially if nearby waterways are affected), expensive to remedy and can also be a criminal offence. Contamination could also affect the landowner’s use of their own remaining land.
Building storage facilities raises the issue of competing pressure on finite land. Locally, communities want new (normally affordable) homes, while nationally there is a drive for renewable energy creation. This tension is something we will explore in more detail over the coming weeks.
Upgrade the grid
The other challenge is the capacity of the national grid. The grid requires significant upgrades and improved infrastructure to cater to the additional demand that will be placed on it due to our move to increased electricity use – especially in rural areas. It also needs to be adapted to cater for the peaks and troughs associated with renewable energy, the required storage and the new ways that electricity will move though the grid.
Electric vehicles are a clear example of increasing our reliance on electricity. As we transition to EVs, the supporting infrastructure is vital; it is anticipated that, unless the national grid is strengthened, the charging needs from millions of new EVs could result in blackouts across the country.
Retrofit revolution
Moving towards a reality where all of the UK’s energy is provided by renewable sources is laudable, and necessary to meet net-zero targets. However, generating clean energy can only take us so far if the commercial and residential buildings using this energy are wasting it through buildings that are not energy efficient.
Eighty percent of the buildings that exist now will be in place in 2050 when the UK has committed to be net zero. To ensure our commercial buildings and housing stock are operating efficiently it requires a retrofit revolution, but the onus has been placed on consumers and landlords. In many cases, the cost to the private sector is not proportionate to the energy efficiency improvements that are achievable. Some incentives have been offered to encourage upgrades, including zero rating certain energy saving materials in domestic buildings, but this incentive is time bound and will only go so far given it isn’t applicable to commercial buildings.
Currently, legislation prohibits the new letting of buildings with an F or G energy performance certificate rating (including renewals of existing tenancies) unless an exemption applies. The continued letting of residential property is also prohibited if such property has an EPC rating below an E. From 1 April 2023, landlords will also no longer be able to continue to let commercial properties with an EPC rating below an E. Proposed legislation was put forward in a 2020 white paper to change the minimum standard for commercial property to a C rating in 2027 and a B rating in 2030. The suitability of the EPC rating system is a topic for another day, but the proposed legislation highlights the impression that a lot of work needs to be done to get the UK’s current building stock up to scratch.
Around 500,000 buildings in England are protected by statutory listing, while hundreds of thousands more are in conservation areas. Without changing the policy guidance to enable energy efficient upgrades to be made more easily to these buildings, it is an incredibly costly and drawn-out process.
This is the issue; policy is inconsistent and inconsistently applied. This means that, while net-zero ambitions are to be commended, we have a long way to go before they are a reality.
This article was originally published in EG (21 June 2022) and is also available to read here behind their paywall.
Will ground rent legislation deliver positive change in later living? – Amy France writes for EG
10 August 2022
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Commercial Real Estate Partner and Head of Later Living, Amy France, has written for EG, considering how the later living sector may now be viewing the Leasehold Reform (Ground Rent) Act 2022, as an opportunity to deliver positive change.
The article, which was first published on 8 August 2022 on the EG website, is available to read in full here (behind the EG paywall).
Could building safety legislation derail house building targets? Ella Jones writes for Property Week
17 June 2022
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Planning Associate, Ella Jones, has written for Property Week, on one of the key questions following the investigations carried out in the wake of the Grenfell Tower fire – who pays to remedy defective cladding.
Originally, leaseholders were to be liable, until (housing secretary) Gove’s amendment to the Building Safety Act earlier this year, stipulated that developers would need to contribute to a £4bn national fund to pay for remediation – those failing to contribute, could face planning permission and building control sign-off blocked by the government (effectively preventing developers from building and selling new homes).
Jones said: “The government would be wise to avoid this as it will definitely slow down new homes delivery and conflict with the agenda to deliver 300,000 homes a year. While building safety is a very serious issue that needs to be remedied, there are many unanswered questions that will need addressing if the measures are to work effectively without causing a drop in housing supply.”
How enforcement action will come into play and whose responsibility it will be, is yet to be detailed.
The article was first published in Property Week on 16 June 2022 and is available to read in full here, behind the paywall.
Read further insights from our team on the Building Safety Act here.
London’s Tall Buildings: The Survey, The Plan and The Master Brewer – Victoria Du Croz writes for NLA
9 May 2022
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Head of Planning, Victoria Du Croz, writes for New London Architecture, following publication of the 2022 NLA Tall Buildings Survey, providing insight into the changing planning landscape underpinning the development of tall buildings in London.
Despite a myriad of potentially frustrating factors in recent years ranging from supply chain problems to commodity prices, development of tall buildings in London in 2022 continues apace, with planning applications approved in record numbers last year (2021) according to the 2022 NLA London Tall Buildings Survey, published 26 April and in partnership with Knight Frank.
2021 also saw welcome clarification, via judicial review, of former Housing Secretary Robert Jenrick’s direction of December 2019 concerning planning policy D9 of the London Plan. Jenrick’s intervention was a response to objections about circumstances where it was felt that tall buildings fail to reflect the character of the areas in which they were being proposed. The proposed solution was to attempt to confine tall buildings to “clearly defined areas within the local plan”.
Whilst the Government’s intervention in the wording of policy D9 was welcomed by bodies such as Historic England, many developers were concerned as to how policy D9 would be applied and if it would prevent tall buildings coming forward unless the site is allocated as such in the local plan. The knock-on effect could have been serious delays to the delivery of tall buildings in the capital.
Further clarity on the interpretation of D9 was obtained in December 2021 in London Borough of Hillingdon, R (On the Application Of) v Mayor of London [2021] EWHC 3387 (Admin), better known as the Master Brewer case, where the High Court found, contrary to widespread fears, that it’s entirely possible for a tall building to come forward even if the site is not allocated as such in the local plan. Planning applications nevertheless must still comply with D9 requirements to consider visual impact on a short, medium and long-range basis; functional impact including regard for local services and transport capacity; and environmental impact, including wind, daylight and sunlight penetration, among other considerations. In light of the original direction, many feared that the court would adopt a stricter interpretation.
Greater certainty is also assisted by Historic England, who have issued multiple advice notes on tall buildings, the latest of which, published 2022, cites the London Plan and policy D9 as a good example of a development plan that sets out a clear strategy for the development of tall buildings. The advice note aims to support local planning authorities and other stakeholders by setting out clear guidance on all aspects of the planning framework for delivering tall buildings. It offers guidance on identifying sites suitable for tall buildings in local plans, and a supporting documentation checklist for tall building planning applications. It is understood that Historic England remain concerned about the application of policy D9 given the Master Brewer case and continue to closely monitor planning applications for tall buildings in London.
Whilst widespread concern amongst developers about a strict interpretation of policy D9 has been removed by Master Brewer, planning for tall buildings in London is far from straightforward and seldom achieved quickly.
New London Architecture (NLA) is the world’s leading centre for excellence for the built environment. Their purpose is to improve the quality of people’s lives by making London a better place to live, work and visit.
The NLA Tall Buildings Survey is an annual publication, developed with research partner Knight Frank, delivering up-to-date figures and analysis of the London tall buildings pipeline.
Forsters’ Planning team shortlisted for Planning Awards
22 April 2022
News
We are delighted that Forsters’ Planning team, headed up by Victoria Du Croz, have been shortlisted for Planning Law Firm of the Year at the Planning Awards 2022.
The Planning Awards, now in their ninth successive year, showcase the outstanding work across the planning and placemaking sectors through recognition of projects, plans, people and organisations that are making places better.
Forsters Planning team has a strong reputation within the real estate market both as technical experts, and for building strong and lasting relationships. This recognition (particularly acknowledging Planning Counsel, Matthew Evans‘ involvement with Greenwich Peninsula – one of the largest regeneration projects in Europe) is testament to their continued growth, dedication to clients and expertise in this specialist area of law.
The winner will be announced on June 9 at a live awards ceremony at The Mermaid London.
No ‘planning panacea’ through Section 106 and CIL abolition: Matthew Evans speaks to Property Week
22 April 2022
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Earlier this month, the government announced its intention to replace Section 106 planning obligations and the tariff-based Community Infrastructure Levy (CIL) with a new, uniform infrastructure levy. Whilst the proposed change is expected to simplify the system, is a uniform levy really the answer?
Planning Counsel Matthew Evans says that the government’s announcement has already started to cause disruption, “many local authorities have paused CIL reviews on the basis that it is pointless to bring forward plans that will possibly change in a few years”. He believes there are difficulties associated with a one-size fits all levy, not least because one of the ideas behind the initial introduction of CIL was that “it was going to do everything that the new levy will”, which he says, didn’t work out because “fundamentally, there are complicated elements that still need these bespoke agreements, one of which is affordable housing”.
Evans stresses the need for greater detail on the government’s proposals (and soon) before development in some areas could either slow or stop altogether.
This article was first published in Property Week on 21 April 2022 and is available to read here, behind the paywall.
Commenting that she would firmly focus on increasing funding to local planning authorities, she said “to enable compulsory training to all planning committees so they have a better understanding of the statutory basis for determining planning applications.”
This, Victoria says “would reduce the number of decisions overturned on appeal or through judicial review and would lead to greater faith in the local decision-making process both from members of the public and developers.”
This article was first published in React News on 8 April 2022 and is available to read in full here, behind the paywall.
Greening Greenwich: Matthew Evans writes for Opportunity London
4 April 2022
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Planning Counsel, Matthew Evans, has written for Opportunity London – New London Architecture’s brand new website, launched in partnership with Mayor of London, City of London Corporation, London Councils and London & Partners.
Contributing to the launch, Matthew shares experience from Knight Dragon’s Greenwich Peninsula (which Forsters has advised on from the outset) as a project that demonstrates ESG value and confirms London’s status as a leading world city for global investment.
In 1994, author and entrepreneur John Elkington coined the phrase the “triple bottom line”. With it he introduced the “3Ps”: people, planet, profit. His vision was that in future, organisations would measure success not solely by profit, but also by reference to the positive or negative effects organisations had on society more broadly.
Over the following decades, the shift away from the supremacy of shareholder value towards stakeholder value has become a defining trend in management thinking and is exemplified in projects like the 150-acre, £8.4bn Knight Dragon Greenwich Peninsula regeneration project in Southeast London.
Forsters LLP has advised on the project from the outset, engaging with a broad group of stakeholders on a vision that prioritises people and planet, but achieves these aspirations through attractive investment opportunities.
The project is among Europe’s largest regeneration schemes, comprising 17,487 new homes, 75,000 sq. ft. of offices, 23,000 sq. ft. of retail and restaurants, and 42,000 sq. ft. of education facilities, serving five new neighbourhoods.
People
Twelve years prior, the Greenwich Peninsula was an industrial wasteland. What has followed is a model of urban transformation in which the economic, social, educational and welfare needs of residents have guided the planning, design, and build. The project is expected to provide 12,000 new jobs and includes three new primary schools (one already provided), a healthcare centre and sports facilities. Among innovative features of the development has been a community fund – calculated on a per-household basis – to which developers contribute as construction begins on different phases. Its purpose is to maximise the social value and community investment and supplements the work of Greenwich Local Labour and Business (GLLaB).
Planet
De-carbonisation has been a dominant theme in the project, which includes sophisticated offset mechanisms, and developer contributions to borough-wide council funds. Each building must not only comply with the UK’s forward-looking building regulations, but also meet ambitious green targets specific to the project. In the event of failure to meet requirements, remedies include re-work or enhanced financial contributions to carbon offsets. Other initiatives include a centralised energy centre providing hot water and heating across the entire site, with the goal of helping decarbonisation.
Profit
The economics of the project, especially job opportunities for residents, have been a high priority. Interests have been carefully balanced between profit maximisation and the need to make this landmark development open and accessible. Most obviously this manifests itself in balancing provision of ‘affordable’ homes with homes at the higher end of the market. By working with stakeholders, it has been agreed that housing developer L&Q Group will deliver a minimum of 60% Affordable Housing (AH) in Brickfields and a minimum of 28% AH will be delivered across the Peninsula as a whole.
Balancing the ever-evolving interests of such diverse stakeholder groups is a phenomenal challenge, but central to achieving the ambitious vision of this project. Its successful completion will transform an over-looked site on the Thames and uplift the lives of resident individuals and communities alike. I’m sure John Elkington would approve.
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